By: Haider Ali & Chernor Barrie
While living in a society, there comes a conflict and to resolve that conflict there are two ways: war or negotiations. However, the powerful have always opted for war to subjugate and bring havoc to the weak to establish its dominance in the pretext to resolve the conflict. In the case of the Russia-Ukraine war, Russia has clearly taken the path of violence and aggression. But the role of European States and America in this conflict is highly disagreeable.
In this essay, we have tried to shed light on the current situation and some important facts regarding the conflict. Examined the act of Russia as Aggression defined in the Rome Statute and also studied the prerequisites to determine the act of aggression. Discussed the jurisdiction of the International Criminal Court, its limitations and its current role in the War along with the role of the international community and United nations. What could the UN assembly possibly do to hold accountable and play its role? What’s the context and politics behind this war and its possible solutions?
Current Situation and Some Facts Regarding Russia-Ukraine War:
It has been nine months since the war between Russia and Ukraine. On 24th February, 2022, Russia invaded Ukraine. After pouring billions into the war and pushing for a military solution it is for the first time, on 2nd December, since the start of war that the American President has given a statement to start negotiations if Putin wants to end war while in a meeting with the french president. The Kremlin responded that Putin has been, is and remains open to negotiations. Putin said he has no regrets in launching a ‘Special military operation’ to disarm Ukraine. Russia condemned France’s statement to investigate crimes committed by Russia in a special tribunal under the European Union. However, Till this day, Hundreds of people have been killed. Billions of worth of infrastructure was destroyed. War crimes have been Committed. Russia is knocking out Ukraine from gas and heat in the wake of winter to squeeze the situation further. This is the current situation of the Russia-Ukraine war.
As far as the definition of the Aggression given in the Room Statute is concerned this is a clear case of aggression from Russia. There is a direct military action involved on the directions of the head of the state that has created destruction.The whole western world is backing Ukraine in this War. Instead of pushing for peace and diplomacy we see major regional and global players pushing for a military solution that is putting this planet and humanity at stake. The lives of Ukranians and soldiers fighting this war is way more important than the interest of a few powerful states and individuals.
The definition of Aggression according to the Rome Statute article 8 is given below. Rome Statute Article 8
For the purpose of this statute, crime of aggression means, the planning, preparation, initiation, or execution by a person in a position effectively to exercise control over or to direct a political or military action of a state, or an act of aggression which by its character gravity and scale constitute manifest violation of the UN Charter.
Jurisdiction of the International Criminal Court:
Article 5 of the Rome Statute Court shall exercise jurisdiction over the crime of aggression, once a provision is adopted in accordance with articles 121 & 123, defining crime and setting out the conditions. Criminal Responsibility Rome Statute Article 25 Determines the various forms of international criminal responsibility for the purposes of the ICC. According to Article 25 (3), it is applicable to a person who is effectively in a role to order political or military action
Role of the International Criminal Court:
This fact is record breaking that 43 states have referred the situation to ICC for investigation. However, the conviction rate of ICC is very low. Though convictions are not the measure of success of any court. In the past, States did not provide it with enough resources and cooperation. States are now supporting with additional resources and granting millions to ICC. On 17th May, ICC employed large teams of investigators, forensic experts and legal experts to investigate the war crimes. The cooperation from both the parties engaged in the conflict is compulsory to get a concrete way forward to put criminal responsibility on the individuals who have ordered the invasion and are involved in committing the war of crimes. Russia has out rightly denied the cooperation because she has withdrawn its signature from the Rome Statute since the Crimean occupation report published by ICC in 2016.
There is a possibility that perceived legitimacy of ICC might increase if the states provide with resources and cooperation beyond the Ukraine situation.
Prerequisites to Examine & Determine Aggression:
Form of Involvement
Intend and Knowledge to attribute criminal responsibility on an individual the intent and knowledge of the crime one committed must be determined.
Use of Armed Force – Inconsistent with UN Charter Act of Aggression?
Use of armed force by a state against the sovereignty, territorial integrity or political independence of another state.
Military Occupation by a state of another independent territory of a state even temporarily.
Annexation by force of the territory of another independent and sovereign state against their will and agreement.
Bombardment by the armed forces in the territory of another state.
Blockade of the ports, routes or coast of a state by another state (armed forces).
Security Council Authorisation (Art. 39, 41 – 2 UN Charter)
Determination to the threat of peace, breach of the peace or the act of aggression.
Role of United Nations General Assembly:
In the wake of the Russia-Ukraine war Humanitarian Intervention Resolution Adopted by the General Assembly – 2 March 2022. Resolution Condemned the 24 February 2022 declaration by the Russian Federation of a “special military operation” in Ukraine.
Another Resolution adopted by the General Assembly on 24 March 2022, reaffirmed that no territorial acquisition resulting from the threat or use of force shall be recognized as legal.
In case of human rights abuses and violations by Russia Humanitarian consequences of the aggression against Ukraine Resolution adopted by the General Assembly on 7 April 2022. It Decides to suspend the rights of membership in the Human Rights Council of the Russian Federation. It has Also decided to review the matter, as appropriate; U4P Resolution.
The Role of the UN General Assembly and Possible way Forward: Some Recommendations suggested by the Experts.
Condemn Russian aggression in strongest possible terms.
There is a need to Impose unilateral sanctions.
Call on states to break off diplomatic relations. The Uniting for Peace Resolution.
March 14, 2022 – Mission appointed by Ukraine with the support of 25 OSCE participating states Mandate of the Mission.
Report by a Mission of Experts Under OSCE Moscow Mechanism Findings:
Establish the facts regarding violations of IHRL & IHL, war crimes and crimes against humanity etc., and present this information to the relevant accountability mechanisms. .
war crimes & crimes against humanity have been committed.
Mission concluded regarding IHL & IHRL
Use of explosives
Hospitals and Ambulances destroyed
Prisoners of War
Unable to determine individual perpetrators
Rape of women and girls
Conclusion of the Report:
In the conclusion of the report the commission attributed main responsibilities with national authorities to hold accountable those involved. The Commission failed to adjudicate the claim of criminal liability. More investigations required to establish individual criminal responsibility Report by a Mission of Experts Under OSCE Moscow Mechanism.
Different ways adopted to hold accountable the aggressor party:
Through the International Criminal Court, Independent international commission of inquiry on Ukraine, established by the UN Human Rights Council, NGOs working on the ground gathering facts Global Network for Accountability. More investigations required to establish individual criminal responsibility Report by a Mission of Experts Under
OSCE Moscow Mechanism
Statement by the ICC Prosecutor:
The ICC prosecutor, Fatou Bensouda, clearly states that this conflict preliminary meets the criteria to be investigated. Bensoda said that Unfortunately, due to non-cooperation of one party we are unable to carry out the proceedings. And Asked for the shared framework of complimentary domestic and international action.
Putting the Russian-Ukraine War into Perspective: Its Context and Politics.
“Putin unleashed a war out of choice, his argument that he had no alternative is rubbish. Whenever countries invaded, whether it’s Ukraine, Yemen, Palestinians, whoever, I will always support the invaded. I think we have a moral duty to do that. And to support the military defence, within reason of course.” -Yanis Varoufakis
There is a historical text behind this war and politics involved that needs to be discussed. This is not a simple matter of right and wrong rather a complex story of war, corporate, military and political interests. And Of Course, the Ukranians are on the receiving end paying the price of this battle.
● History of Conflict – 8 Years of Civil War b/w Kyiv & Donbars.
The United States of America has never come out of the mentality of the cold war to fight the interest of Russia for dominance. The USA has been supporting Ukraine to maintain its hegemony and to protect its interest. In the past, it Helped Ukraine militarily and financially. CIA even trained Azov Battalion, Neo Nazi grouping.
The conflict started over the Ukraine-US charter to include Ukraine into NATO. There are few prerequisites to maintain the balance of power in the region. The USA brought Ukraine into NATO and poses a threat to Russia. This is not a simple matter of the independent will of Ukraine; its decision to join NATO will impact the security of Russia.
Russia invaded Ukraine on Feb 24, 2022 and had done an act of aggression against Ukraine according to the Rome statute. After the War and devastation instead of striving for peace there was a strong Opposition by Washington for diplomatic solutions. US & NATO – pouring billions & providing military aid to prolong the war. This has become an Inter Capitalist War involving big oil- gas corporations, military industrial complex etc.
Ukraine and Russia War A Win-Win Situation for the US:
“The US wants to turn Ukraine into permanent conflict.” Yanis Varoufakis
War has always brought death and destruction to the people but it always has benefitted the powerful and few capitalists. In this case the biggest beneficiary is America and its business. That’s why America has been pushing for a military solution.
Why is America supporting Ukraine?
No American Casualties. There will be no American casualties since no American has been directly fighting against Russia. No bags containing dead bodies going back to America. So no harm to the American citizens.
Military Industrial Complex: Wherever there is war American military industrial complex get benefitted from that war directly by selling weapons to both the parties engaged in war. In a similar fashion, in the Ukraine- Russia War, America has been selling ammunition to the whole of Europe due to the looming threat of war in the whole of Europe.
Oil & Gas Corporations: After sanctions on Russia, the consumption of Oil and Gas of the European Market is being meted out by the Oil and Gas Corporation of America earning billions of dollars.
Through this war the USA is somehow bullying European states to conform and depend on the strategy and policy of the USA. it is another way to keep its political hegemony
Possible Solution of the Ukraine- Russia War:
European states & other major players need to push for the diplomatic solutions of the conflict, instead of supporting war.
As suggested by Yanis Varoufakis;
Russian troops back where they were before February 24.
US commitment to not make Ukraine a NATO member.
Mutual guarantee of its neutrality.
A peace agreement b/w Ukrainian speakers and Russian speakers.
It is a clear case of Aggression against UKraine by Russia. But what we have seen in this case, despite the unwavering support to the international institutions and international regime, they have somehow failed to play a vital role to attribute criminal responsibility, and conduct impartial investigations. In this case, prosecuting Perpetrators or conducting investigations demands full cooperation with the Court of both the parties. However, the acceptance and legitimacy of the international institutions is very limited because of the politics involved in it. Instead of relying on international institutions, this is a political problem and demands a political solution by the stakeholders involved in it.